When Racism Isn’t Racism: McCleskey V. Kemp

The nature of death has always been a fascinating one throughout history. Wars have been launched in the name of eternal life in the service of a divine spirit. Warrior spirits have been exalted in the Norse, Greek, Persian and Catholic mythos. Even Shakespeare’s Hamlet pondered the meaning of life and death in the famous rhetorical soliloquy, “To be or not to be… That is the question.”

The death penalty offers an equally vexing debate for historians and citizens alike. Whether it is nobler to take a life from someone who has taken life is a debate that is not going to be settled anytime soon, and certainly not on this space. The racial inequities, questions of suffering and state power, and the nature of just killing are all fascinating topics.

document-5I might briefly add an interesting legal and historical note. In the famous case of McCleskey V. Kemp, the Supreme Court of the United States was presented with evidence that the application of the death penalty was inherently unequal, putting people of color to death far more frequently and for the same crimes as whites, who did not suffer death as a punishment.

In the case, Warren McCleskey was sentenced to die for murdering a  white Atlanta police officer. His defense team, aided by University of Iowa law professor David C. Baldus, produced a study examining more than 2,000 in Georgia.

It showed that an African America defendant, like Mr. McCleskey, was 1.7 times more likely to receive a death sentence than white defendants. It showed conclusively that murderers of white victims were 4.3 times as likely to receive death sentences than defendants who murdered African Americans.

downloadThe conclusions of the evidence would lead a logical reader to see that the state applies the ultimate punishment in a similar manner as it applies other rewards and limitations: essentially biased against minorities and in favor of whites. This is a sad reality, that only white privilege seems able to deny.

Interestingly, the Supreme Court rules in McCleskey v Kemp, in a 5-to-4 ruling, that patterns of discrimination, proven by the Baldus study, do NOT prove that racial discrimination was present in the death penalty.

Consider that for a moment.

The Court chose to see that the evidence of racial discrimination generally did not amount to racial discrimination specifically. It’s kind of like saying, “I’m not racist because some of my best friends are black.”

In it’s review of the legacy of this decision, The New York Times wrote, “By insisting on direct evidence of racial discrimination, the court in McCleskey essentially made the fact of pervasive racism legally irrelevant, because prosecutors rarely write emails announcing they are seeking death in a given case because the murderer was black (or because the victim was white.)

The article is really quite telling.

It goes on to say, “Since 1976, Texas has carried out 470 executions. You can count on one hand the number of those executions that involve a white murderer and a black victim and you do not need to use your thumb, ring finger, index or pinkie.”

So that means just one.

This is exactly the type of evidence that supports the claims made by the Black Lives Matter movement. It is not that all lives should matter. It is that black lives have never mattered. And they still don’t matter, not as long as the justice system allows for decisions like McCleskey to influence the application of racially unjust death penalties.

Conservatives love to fixate on the injustice of Roe v Wade, arguing the killing of unborn lives through abortion is abhorrent.

It might be time for those same outraged conservatives to consider that other lives are being snuffed out in a system that is demonstrably unjust to them. If their heart aches for justice, it should ache for justice for all.

That would be away to claim that all lives matter.

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Author: historydojo

I’m a National Board Certified Teacher with nearly twenty years of experience teaching high school history. I blog about teaching, history, current events, the law and social justice.

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